England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/06/2006

Mr Justice Royce :

The Claimant was born on 6^th June 1967. From 1990 to 2^nd March 2001 he was employed by Railtrack as a signalman, based in Liverpool. He was a member of the National Union of Rail, Maritime and Transport Workers ("RMT") – the second Defendants.

The first Defendants Pattinson and Brewer ("P & B") are a firm of solicitors who regularly acted for members of the RMT.

The Claimant did not within the 3 month time limit laid down by section 111 (2) of the Employment Rights Act 1996, present a complaint to an Employment Tribunal complaining of his dismissal by Railtrack. The dismissal was by letter dated 2^nd March 2001. The Claimant alleges that the failure to observe the time limit was due to the negligence and/or breach of duty of P & B and/or RMT.

This trial is concerned only with the issue of liability.

Chronology

I set out in summary form the history of this matter using the abbreviations C for Claimant, D1 for P & B and D2 for RMT.

10.10.90	C starts work for British Rail.
10.98	C begins to experience migraines.
1.99	C is involved in a safety of the line incident.
15.3.99	C off work with migraines.
1.9.99	C returns to work.
10.99	C involved in safety of the line incident.
29.7.00	C informed by Railtrack he will be on half pay.
16.8.00	C is informed by Railtrack he is not entitled to SSP.
17.10.00	C seen by Dr Nanavati.
25.10.00	Dr Nurmikko (pain consultant) sends his report on C to Dr Thomas the Railtrack doctor.
3.11.00	C represented by Jack Jones of RMT at meeting with Railtrack (Kehir –Rodgers).
8.1.01	C examined by Dr Thomas for Railtrack who concludes C is unfit to resume work as a signaller for at least 12 months, and would need to remain symptom free for at least 12 months before returning to such work. He could perform office bound duties or other work in a place of safety but unlikely to be fit for such work in less than 2 months.
15.2.01	C represented by Jack Jones of RMT at meeting with Kehir.
27.2.01	C signs RMT Claim Form L1 – Application for legal assistance – Accident and Industrial Disease Claims."Date and time ceased work: 31.01.00. Exact nature of injuries: stress/migraine." "Date of accident: stress".
28.2.01	C is examined by Dr Thomas. Disputed telephone conversation between C and Jones.
2.3.01	Railtrack letter dismissing C on grounds of ill health
3.3.01	Disputed telephone conversation between C and Jones.
5.3.01	Tilley, RMT Branch Secretary, signs form L1 certifying C "in benefit".
7.3.01	D1 acknowledges receipt of form L1.
9.3.01	C writes to Railtrack re-ill health retirement.
13.3.01	Kehir letter to C re-ill health severance details and pay in lieu of notice.
14.3.01	Disputed telephone conversation between C and Jones.
14.3.01	Disputed telephone conversation between C and Tilley.
12.4.01	D1 (Jane Radcliffe) peruses claim form L1. File note "claimant is alleging that his migraines have been caused/exacerbated by problems at work. I can see difficulties on causation and liability here but I will get the medical notes and records and then see him to get a statement."
14.4.01	D1 letter to C accepting instructions and enclosing medical questionnaire and losses and expenses questionnaire.
2.5.01	C has telephone conversation with "Debbie" of D1 about the questionnaires.
10.5.01	C returns questionnaires. On losses and expenses questionnaire he includes reference to the fact that his contract of employment terminated on 2 March 2001. D1 seeks medical notes from GP and hospitals.
24.5.01	D1 seeks further medical notes.
1.6.01	Limitation dates for any claim by C for unfair dismissal and disability discrimination.
26.6.01	D1 attendance note (Jane Radcliffe) re – perusing the questionnaires.
27.6.01	D1 letter to C about disclosure.
29.6.01	D1 attendance note re – C's telephone call about the disclosure letter.
5.7.01	C letter to pension manager asking for an application for benefits form.
31.7.01	C telephones D1 (Radcliffe) asking for help with problems he is encountering in obtaining ill health pension. He is referred to the Union Divisional Representative in the Liverpool office.
13.8.01	D1 (Radcliffe) peruses medical notes and records.
6.11.01	D1 interview with C and his wife for 3 hours.
6.12.01	D1 file note "JR checking file for limitation. Difficult to see where this should run from the gist of this claim seems to be that he was off sick with migraines and the employers made him feel worse by their attitude. In terms of absence he was off from November 1998 to March 1999 and then he got a form 1 when he came back to work in March. He then went on sick leave again in January 2000. It is very difficult to work out limitation here. I think we ought to take it as January 2000 but this is one to turn down quickly."
20.12.01	Continuation of meeting with C for 1 hour.
18.6.02	D1 letter to C analysing the personal injury claim and advising that there was not a reasonable prospect of success.

1. I heard oral evidence from the Claimant. On behalf of P & B evidence was given by Jane Radcliffe and Paul Statham both solicitors. A statement from Debra Wilson was admitted under the Civil Evidence Act. On behalf of RMT I heard from Jack Jones and John Tilley.

The Claimant's case:

2. i) He was dismissed on 2^nd March 2001 in controversial circumstances in that he was (a) dismissed by letter from the job he had worked for in excess of 11 years (b) dismissed whilst on extended sick leave (c) on at least his own view, without proper regard to the available medical evidence (d) without being considered for alternative positions.

ii) Prior to and following his dismissal his interests were being represented by RMT and following dismissal by RMT and P & B. His complaints relate to his treatment by Railtrack as an employee. After 2^nd March 2001 it also became a complaint about his dismissal.

iii) The pre-termination complaint (the stress complaint) overlapped with (if it was not overtaken by) the dismissal issue. He was assured by RMT that his dismissal was improper and was being contested and was in the hands of the solicitors. He then left matters to his professional advisors (both Defendants) and responded promptly and helpfully to all requests made by P & B for information and detail including conducting a telephone conversation on 2^nd May 2001 with P & B's fee earner's secretary and sending the entirety of his employment papers (including his letter of dismissal) to P & B which they received on 10^th May 2001.

iv) He was not informed by P & B that his claim (as they saw it) was not to be pursued until 18^th June 2002. Thus he had not pursued a remedy in respect of that dismissal and was long out of time for bringing such a claim.

P & B's case:

3. i) They received their instructions on Form L1 and the accompanying letters. That form was the standard Union form headed Application for Legal Assistance Accident and Industrial Disease Claims.

ii) The printed and inserted wording on Form L1 made no mention of dismissal or loss of employment as an impending threat or possibility or at all.

iii) The Claimant never sought advice or assistance from them relating to the termination of his employment apart from a conversation about ill health pension on 31^st July 2001 which was more than 3 months after the termination.

iv) The Claimant did not inform them that his employment had been terminated nor did anyone on his behalf at the time it occurred. Had he been relying on them to assist him in relation to possible employment remedies he would have notified them immediately. They were not given information about the termination of his contract of employment until 10^th May 2001 and that was only in a questionnaire the Claimant had completed about losses and expenses.

vi) They were aware it was the practice of RMT to handle most employment law cases on behalf of members itself, at least in the first instance. If their solicitors were to receive instructions on employment matters those instructions would come from the Legal Officer in the name of the General Secretary.

vii) They were not retained to advise the Claimant in relation to Employment Law/Employment Tribunal matters and there was nothing in the circumstances to indicate to them that the Claimant required or expected advice from them on such matters.

4. RMT's case:

i) The Claimant's claim for Union legal assistance was in Form L1 dated 27^th February 2001 received and approved by the Branch Secretary Mr Tilley on 5^th March 2001. The Claimant complained of stress/migraine which he said he thought had been made worse by Railtrack's treatment of him whilst he was off sick.

ii) That form which was completed prior to his dismissal on 2^nd March was the basis upon which RMT instructed P & B to act for him. At no time after his dismissal did the Claimant contact RMT to inform them that he was dismissed or that he was aggrieved by it or to ask for any assistance in connection with a potential Employment Tribunal claim.

iii) Mr Jones was an experienced RMT official and lay member of the Employment Tribunal. Had he been told of the dismissal he would have advised that it should have been appealed and that there was a 3 month time limit for proceedings in the Employment Tribunal.

Events leading to the instruction of P & B

5. On 15^th February 2001 a meeting took place between the Claimant represented by Jack Jones of RMT and Sheila Kehir of Railtrack to discuss the Claimant's position in consequence of medical reports which had been obtained.
6. At that meeting Miss Kehir apparently reported that Dr Thomas had expressed the view that the Claimant was unable to return to work in any capacity. The Claimant and /or Jack Jones stressed to Kehir that this was not in accordance with Dr Thomas's report of 8^th January 2001; that the Claimant would be able to return to work as a signalman and in any event he could take up office duties. Miss Kehir appears to have rejected the points made by or on behalf of the Claimant and stated that unless he was fit to work as a signalman by the end of March 2001, his employment would be terminated and there were no other jobs for the Claimant to do. Jack Jones agreed that was broadly accurate as an account of what had happened. However he said that quite often Railtrack did not actually terminate employees' employment notwithstanding they threatened to do so. He accepted that he was angry with Kehir about the matter.

The Completion of Form L1

7. This form was produced by Jack Jones following the meeting. It is headed "Application for Legal Assistance Accident and Industrial Disease Claims". It is obviously designed for use for personal injury claims. It is common ground that most of the form was completed by Jack Jones. Opposite "Date of Accident" he put "stress". The "Date and Time work ceased" was filled in by the Claimant as the 31^st January 2000. For "Exact Nature of Injuries" Mr Jones put "stress/migraine."
8. Part 8 of the form says "describe in full detail the exact circumstances leading up to your accident and how it happened. Please remember that inaccurate or misleading information may prejudice a claim for damages." Mr Jones then put in "I began employment with BR as a signalman in October 1990 and had no medical problems up until November 1998 when I began to have cluster migraine attacks after being promoted to being a signaller at Sandhills in July 98. I have been off sick since Jan 2000." The Claimant then added "Since going off sick in Jan 2000 as well as the migraines becoming more severe and more frequent, I also started suffering dizzy spells and had drop attacks when migraine was most severe. See attached letter 1."
9. Section 9 is headed "Claim for Damages; I certify that the statement above is a true account of my accident and I authorise the National Union of Rail, Maritime and Transport Workers to pursue a claim for damages on my behalf. Clearly state who or what is alleged to have been negligent and why. In the event of an outside firm being involved, the name and postal address is required together with the name of the person who was negligent." Mr Jones put "I believe that migraine attacks would not have been so severe and could well have improved only for Railtrack's treatment of me whilst off sick". The Claimant added "see attached letter 2." He signed the form on 27^th February. The two letters make reference to Railtrack's harassment and bullying tactics of him instead of offering support. Nowhere is there a reference to any anticipated dismissal or threatened dismissal.
10. The Claimant said that he had read the contents of the form carefully before signing it. It was then sent to Mr Tilley, the Branch Secretary, for him to certify that the member was entitled to legal advice as he was up to date with subscription fees. He signed it on 5^th March and dispatched it to P & B.

Factual issues in the case against P & B

11. Jane Radcliffe was the solicitor handling the Claimant's case. After receipt of Form L1 she wrote confirming receipt of instructions to the Claimant and to Mr Tilley the RMT representative on 7^th March 2001. After she had received RMT's confirmation that the Claimant was in benefit she wrote to him on 14^th April to confirm that they would act on his behalf. She indicated that they would need to see his medical notes and records before meeting with him to discuss his claim in more detail. She enclosed a medical questionnaire, a loss and expenses statement and a form of authority for release of his records to be completed by him.
12. The Claimant spoke on the telephone to Debra Wilson who was Radcliffe's secretary, on 2^nd May 2001. He did so he says because he was unsure of the meaning of the various questionnaires and how to reply to them. According to him he told her that he had lost his job and that he had been dismissed. She disputes that part of the conversation. She made a file note which reads as follows "Client returning my call (which was returning his). He has received the initial letter and questionnaires. He has filled in the first questionnaires and medical authority and will return them to us. He is having difficulty with the specials questionnaires. He has had lots of prescriptions. I said he should be approximate. ….. He says he has lost overtime but again is struggling working out what. He will have to dig out all his wage slips. He seemed very stressed about this. He said he was not coping very well. I told him not to worry, to just fill in the forms as best he could. He will probably send the accident questionnaire and form of consent back to us and hang on to the specials one and go through that in more detail."
13. It is noteworthy that the Claimant's version of the telephone conversation only emerged in a supplementary statement from him on 4^th May 2006, just before the trial. I found his evidence on this aspect to be unimpressive. He had no real explanation as to why it was not included in his extremely detailed first statement. I accept Debra Wilson's evidence that the Defendant's note accurately reflects the conversation which took place. Her note was made close to the time of this conversation and it is far more likely to be accurate.
14. The next area of factual dispute concerns what documents the Claimant sent P & B in May 2001. He sent a completed medical questionnaire (dated 29.4.01) and a losses and expenses statement which appears to be dated 15.5.01 but which he accepted was probably dated 5.05.01. That is because there is a receipt stamp dated 10^th May 2001. It was on this document in answer to the question "date you returned to work" he put "September 1999. Contract of employment terminated 2^nd March 2001." He maintains however that he also sent at that time a copy of his file of papers relating to his employment with Railtrack, and in particular, documents relating to his ill health absences including his letter of dismissal of 2^nd March 2001. That is disputed by Jane Radcliffe. She says the copy documents were not received by her until 9^th July 2001. Again the suggestion from the Claimant about the earlier receipt was not one that he made in his witness statement of January 2006. It was not in the Amended Particulars of Claim. It would have been important evidence. I prefer Miss Radcliffe's evidence on this point. I found her to be considered and impressive as a witness. I conclude the documents were not received until 9^th July.

Factual issues in the case against RMT

15. The second Defendant's pleaded case is "following the meeting of 15^th February 2001 the Claimant did not contact either Jack Jones or John Tilley to inform them of any further developments regarding his employment until June or July 2001 (when the Claimant telephoned John Tilley to ask for assistance in claiming a pension). The Claimant did not notify the second Defendant of his dismissal when the same occurred and did not inform the second Defendant that his employment had been terminated until about June or July 2001."
16. The Claimant maintains that he received a letter from Railtrack asking him to attend upon Dr Thomas again on 28^th February 2001. He then telephoned Jack Jones to say that he had received this letter and read him the contents. He went to the appointment. Dr Thomas commented that he had already seen him and compiled a report. He said that Railtrack had asked him to prepare a further report to see whether he would be able to return to his duties as a signaller by the end of March. Dr Thomas said he could not do this. In consequence the Claimant telephoned Jack Jones and told him the outcome of the meeting. He was angry. Jack Jones said they would fight the dismissal. He asked him if he had filled in the L1 form and sent it off. The Claimant said he had. He said it would be sent on to solicitors once John Tilley had endorsed it.
17. The Claimant goes on to say "I received a letter from Railtrack dated 2^nd March 2001, which said that following my appointment with Dr Thomas on 28^th February 2001, my condition remained unchanged and the letter stated that my employment was being terminated with immediate effect under the ill health severance schemes. telephoned Jack Jones to tell him about this on 3^rd March, once I had received the letter. I read out the letter to Jack Jones on the telephone. He stated that he was not surprised that this had happened, as it seemed Railtrack was going to do this anyway. He said we should go full steam ahead with L1 form and I recall him using the phrase "you have been stitched up."
18. Jack Jones said that he did not remember the Claimant telephoning him on 28^th February but it was possible that he had. He did not recall saying they would fight the dismissal but it was possible. He did not recall being telephoned on 3^rd March but it was possible. The conversation could have taken place but he did not recall it. He agreed he might have used the words "you have been stitched up" but not "we should go full steam ahead." If there had been a conversation he would have told the Claimant to get Form ET1 and fill it in and to appeal the dismissal.
19. On 9^th March 2001 the Claimant wrote to Mr Colbart of Railtrack as follows:- "I received a letter dated 2^nd March 2001, terminating my contract of employment. In the letter it was requested that I phone Sheila Kehir to arrange a date and time to finalise outstanding details. I informed Jack Jones my union rep of letter and requested he contact S. Kehir on my behalf as previous phone conversations with S. Kehir have been very stressful." The letter went on to request details of ill health severance payments.
20. It is highly improbable that the Claimant would have written in those terms had he not in fact told Jack Jones of the dismissal letter on 3^rd March. Jack Jones accepted that it was possible that he had telephoned him. It was clear that Jack Jones was a very busy man with numerous other matters to attend to. I am satisfied that a telephone conversation did take place.
21. The Claimant says that he received a further letter from Kehir dated 13^th March 2001 enclosing a copy of a second medical report of Dr Thomas. He goes on "on 14^th March, I spoke to Jack Jones, after I received the letter of 13^th March from Railtrack. I read out the letter to him on the telephone. He told me I should phone John Tilley as he was on the Pension Panel. I telephoned John Tilley, the Branch Secretary. I did this because I wanted to know where I stood as far as my pension was concerned. John Tilley told me about my pension situation and said he had signed and endorsed the L1 form. He said he had spoken with Jack Jones and that he was as disgusted as Jack Jones was. He said we would fight it all the way and that they should not have sacked me. John Tilley said that I should be hearing from the Union's solicitors soon. On 7^th July 2001, I again spoke to John Tilley regarding my pension. He asked me whether the solicitors had contacted me and whether everything was in hand and they were fighting my case. As I believed they were, I told him that everything was in hand as far as I was aware."
22. Mr Tilley says that he doubts that any conversation took place. He maintains that he was not told of the Claimant's dismissal in March 2001. He agreed that he had at an earlier stage said that the employers should not have pressed him into going back to work. He also accepted that if a conversation had taken place on 14^th March he would have described himself as being disgusted about Railtrack's conduct and may also have used the expression "fight it all the way".
23. The Claimant denied that he was told by Jack Jones or John Tilley that he should appeal the dismissal or issue proceedings himself in the Industrial Tribunal. He said that his clear recollection of the telephone conversations was as set out above.
24. There does appear to have been scope for misunderstanding. The form L1 pre-dated the dismissal in its generation but post-dated dismissal by the time John Tilley had it in his possession. After 2001 a form L2 was introduced which dealt with employment issues. Mr Tilley in his witness statement said that before that all employment cases were submitted on the L1 form with a copy of the ET1 application or any other documents available. Otherwise a letter would be sent by the Branch Secretary instead of completing the L1 form. The Claimant's evidence about these conversations was clear and convincing. I am satisfied that he was aggrieved by his treatment by Railtrack and aggrieved that his employment had come to an end. Had he been told to appeal his dismissal and issue an ET1 I am satisfied he would have done so. Previously he had been co-operative with any such instructions he was given. He would have had good reason to remember the conversations. They were of considerable importance to him.
25. On the other hand neither Jack Jones nor John Tilley could remember any conversations taking place. I am satisfied that conversations did take place. Jones and Tilley could only say what they considered they would have said had conversations taken place. Furthermore because of the unusual chronology with the L1 pre-dating dismissal when it was completed but post-dating it by the time John Tilley came into possession of it I conclude that there was perhaps understandable confusion within RMT as to how the matter was being dealt with.
26. For these reasons I prefer the Claimant's version of events. I am satisfied that he was not advised to issue an ET1.

Legal issues

27. There was in reality no dispute as to the scope of the solicitors' duty of care as the parties accepted it was a fact sensitive case. The duty is conveniently summarised in Pickersgill v Riley [2004] PNLR 31 at paragraphs 7 and 8 :-

"7. It is plain that when a solicitor is instructed by a client to act in a transaction, a duty of care arises. But it also plain that the scope of that duty of care is variable. It will depend, first and foremost, upon the content of the instructions given to the solicitor by the client. It will depend also on the particular circumstances of the case. It is a duty that it is not helpful to try describe in abstract. The scope of the duty may vary depending on the characteristics of the client, in so far as they are apparent to the solicitor. The youthful client, unversed in business affairs, might need explanation and advice from his solicitor before entering into a commercial transaction that it would be pointless, or even sometimes an impertinence, for the solicitor to offer to an obviously experienced businessman."

"8. As to the extent to which a solicitor should make enquiries or investigate matters that he has not been asked to enquire into or investigate, their lordships think paragraph 10-160 in Jackson and Powell on Professional Negligence (5^th edition 2002) correctly states the position:- in the ordinary way a solicitor is not obliged to travel outside his instructions and make investigations which are not expressly or impliedly requested by the client."

28. If P & B was retained by the Claimant in relation to his employment claims, the decision in Friend v Institution of Professional Managers and Specialists [1999] IRLR 173 is authority for the proposition that RMT's duty would in such circumstances fall away.

Liability of P & B

29. Mr Tilley considered that the L1 in this case was clearly instructing P & B to deal with the work stress claim in other words a common law claim for damages. He did not consider it was an instruction for P & B to deal with any employment claim or related matters. Jane Radcliffe did not consider it to be an instruction to deal with an employment claim.
30. Mr Statham was a partner in P & B responsible for doing some employment cases for RMT. He had been unable to trace any instructions on employment cases which were received by P & B on form L1.
31. Nowhere in form L1 or in his accompanying letters did the Claimant draw to the attention of P & B that he was under threat of dismissal. The only time he informed them that his employment had been terminated was in the losses and expenses questionnaire returned on 10^th May. He did not draw it to the attention of P & B as a complaint or something about which he was aggrieved. He did not instruct them to deal with matters arising from the termination of his contract.
32. It was contended on behalf of the Claimant that the information that the contract had been terminated should have prompted Jane Radcliffe to contact the Claimant or RMT. I am not satisfied that she was under any such duty. The evidence of Jack Jones and John Tilley in addition to that of Jane Radcliffe established that in the normal way the Union dealt with or assisted with a member's employment claims. It was very rare for such matters to be referred to P & B, and even then it required a letter from the Union General Secretary.
33. Although the losses and expenses statement was received on 10^th May it was not in fact perused by Jane Radcliffe until after the limitation period had expired on 1^st June. She in fact considered the documents, which went only to quantum, on 26^th June. I do not consider that it was negligent not to consider that document until after 1^st June.
34. I have come to the clear conclusion that the retainer of P & B did not extend to any employment claim consequent upon the termination of the contract of employment. I find that there was no causative negligence or breach of duty on the part of P & B.

Liability of RMT

35. Mr Evans accepted that if the Claimant had informed either Jack Jones or John Tilley of his dismissal and the fact that he was aggrieved by it, then it was the duty of RMT to advise him to complete the ET1 and to appeal his dismissal. He contended that there was a real doubt as to whether the Claimant was in fact aggrieved about his dismissal.
36. He pointed to the fact that nowhere in his witness statement did the Claimant maintain that he said to either Jones or Tilley in express terms "I want my job back". He pointed also to the fact that the Claimant in correspondence seemed to be rather more concerned with his ill health severance details than with complaining about his dismissal. However both Jack Jones and John Tilley in evidence accepted that it was entirely appropriate and common place conduct for a former employee to take proceedings in the Tribunal contesting dismissal but also to enquire about what benefits he was entitled to.
37. On the findings of fact that I have made in relation to the telephone conversations between the Claimant and Jack Jones and John Tilley it follows that Jack Jones and John Tilley were informed by the Claimant of his dismissal and that he was aggrieved by it. He was not unfortunately advised to complete the ET1 or appeal his dismissal. In this respect I find that RMT was negligent and/or in breach of duty.